Michael Parr and Military Rehabilitation and Compensation Commission

[2015] AATA 239

[2015] AATA 239

Division	VETERANS' APPEALS DIVISION
File Number	2014/2894
Re	Michael Parr
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	22 April 2015
Place	Brisbane

The Tribunal affirms the decision under review.

...............................SGD.......................................

Dr M Denovan, Member

CATCHWORDS

VETERANS’ AFFAIRS – Entitlements – Dependants - Eligible Young Person Payment – Whether dependant was an “eligible young person” at the time the veteran became eligible for 80 impairment points – Dependant no longer an “eligible young person” at the time of veteran’s eligibility – Decision under review affirmed

LEGISLATION

Military Rehabilitation & Compensation Act 2004 (Cth) ss 80, 15, 17, 5, 68, 69 and 70

Safety, Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

Dr M Denovan, Member

22 April 2015

INTRODUCTION

1. Mr Michael Parr is the applicant in these proceedings. Mr Parr served in the Royal Australian Army from 27 July 2002 to 4 October 2011.

2. Mr Parr has a number of accepted conditions under the Military Rehabilitation & Compensation Act 2004 (Cth) (“MRCA”), and the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRCA”).

3. Mr Parr has three children. In some cases, young dependants of a veteran with impairment may be entitled to a lump sum payment, known as an Eligible Young Person Payment (“EYPP”). There are a number of criteria that must be met before a young person is eligible for this payment. Of particular importance to this matter, is that the veteran must have 80 or more impairment points for service related disability.

4. On 6 June 2013 the respondent determined that the youngest two children of Mr Parr each satisfy the criteria for an EYPP. The matter before me is about the eligibility of Mr Parr’s eldest child, Yume Parr. The Respondent has determined that Yume Parr does not satisfy the eligibility criteria for an EYPP. Mr Parr believes she does meet all of the criteria.

   BACKGROUND

5. Mr Parr enlisted in the Royal Australian Army on 27 July 2002 and was medically discharged on 4 October 2011.

6. Mr Parr lodged a claim for liability for a number of conditions on 1 April 2010. On 10 June 2011 the respondent accepted liability for major depressive disorder.

7. On 10 February 2012 a delegate of the respondent determined that Mr Parr had a degree of impairment of 64 points as a result of major depressive disorder. This was the only condition for which liability under the MRCA had been accepted at this point in time.

8. On 3 April 2012, as a result of another claim lodged by Mr Parr through his solicitors on 8 September 2011, the Respondent accepted liability for the following conditions:

   (a)osteoarthritis of the acromioclavicular joint of the left shoulder;

   (b)osteoarthritis of the acromioclavicular joint of the right shoulder;

   (c)basal cell carcinoma of the skin; and

   (d)carcinoma of the skin. 

9. On 9 August 2012 the Respondent determined that Mr Parr was not entitled to any increase of permanent impairment compensation for his accepted psychiatric and physical conditions. On 4 September 2012, through his solicitors, Mr Parr requested a reconsideration of this determination, however this request was withdrawn in correspondence dated 25 October 2012.

10. On 23 March 2012 Mr Parr lodged a claim in respect of his right wrist, right knee and right elbow. On 15 January 2013 the Respondent accepted liability for lateral epicondylitis of the right elbow, strain medial collateral ligament of the right knee, and tear of the triangular fibrocartilage of the right wrist.

11. Through correspondence from his solicitors dated 1 February 2013, Mr Parr requested a review of his entitlement to permanent impairment compensation in respect of his accepted physical and psychiatric conditions.

12. On 13 May 2013 the Respondent issued a determination finding Mr Parr was entitled to 80 impairment points, with effect from 22 March 2012. The respondent relied on recent medical reports from Mr Parr’s various medical specialists.

13. On 6 May 2013, through his solicitors, Mr Parr requested the Respondent issue a determination with respect to the dependency entitlements of his three children.

14. On 6 June 2013 the Respondent issued a determination which found that the applicant’s youngest two children each satisfy the criteria for an EYPP.

15. On 17 July 2013 the applicant requested a review of that decision. Specifically, the applicant requested a review of the circumstances of his eldest daughter Yume.

16. On 14 April 2014 the Respondent affirmed the determination dated 6 June 2013, that the applicant’s youngest two children each meet the criteria for an EYPP under the provisions of the MRCA, but found that the applicant’s eldest child, Yume Parr, did not meet the criteria for an EYPP.

    LEGISLATION AND ISSUES

17. Impairment from diseases and injuries are assessed by allocating impairment points from tables provided for by the legislative scheme.  

18. Once a person's impairment rating reaches 80 impairment points, section 80 of the MRCA specifies that the veteran is entitled to receive an additional lump sum payment for each dependant who satisfies the legislative definition of “eligible young person”. 

19. Section 80 of the Act states that to be eligible for this payment, the person must be an eligible young person and a dependant of the impaired veteran at the later of:

    (a)   The date determined by the Commission to be the date on which the impairment suffered by the impaired person constitutes at least 80 impairment points;[1] or

    (b)   either:[2]

    (i)      if the person has a single service injury or disease—the date on which a claim was made under section 319 for acceptance of liability for the injury or disease; or

    (ii)     otherwise—the date on which the most recent claim was made under section 319 for acceptance of liability for one of the service injuries or diseases concerned.

    [1] s 80(2)(a).

    [2] s 80(2)(b).

20. “Dependant” is defined by sections 15 and 17 of the MRCA.

21. “Eligible young person” is defined under section 5 of the MRCA to mean:

    (a)A person under 16; or

    (b)A person who:

    (i)is 16 or more but under 25; and

    (ii)is receiving full time education at a school, college, university or other education institution; and

    (iii)is not in full-time employment or engaged in work full-time on his or her own account.

22. It is not in dispute that Mr Parr presently suffers from a combined impairment of 80 points as a consequence of his accepted psychiatric and physical conditions. The respondent contends the date of entitlement was 22 March 2012.

23. The respondent accepts that each of the applicant’s three children meet the legislative definition of “dependant”, but contends that Yume Parr was not an “eligible young person” on the date Mr Parr became eligible for 80 impairment points, or on the date he lodged his claim for the most recent condition impairment from which contributes to the calculation of 80 points. Whist she was between the ages of 16 and 25 years, she completed her university studies in December 2011, and therefore was not eligible as at that time.

24. Mr Parr contends that he would have been eligible sooner than 22 March 2012, but for the delay in processing his claim by the respondent. He claims there was a three-year delay from the time he submitted his claim to having the injuries assessed. Mr Parr also contends that his psychiatric condition, assessed at 60 points, was stable prior to his daughter graduating in December 2011. He contends that the remainder of the points he is entitled to for physical injuries were also stable prior to November 2011, but were not assessed by doctors for DVA until 2012 or 2013. Although he has lodged a number of claims for various conditions and injuries, Mr Parr contends that he advised his representatives about all of his conditions when he first made contact, and he does not understand why his initial claim did not specify all of his conditions, as he maintains all conditions have been present since the time of his first claim. He feels he should not be penalised as a result of the decisions made by his representatives to claim for different conditions at different times.

25. I must decide whether, at the time Mr Parr lodged his most recent claim that resulted in his being eligible for 80 impairment points, or at the time he was entitled to 80 impairment points[3], Yume Parr was an “eligible young person”, as defined in the MRCA.

    [3] whichever is the later.

    CONSIDERATION

26. Yume Parr graduated in December 2011, some weeks after Mr Parr was medically discharged in October 2011. Yume Parr ceased to be a full time student at the time she graduated. In order to be eligible to be paid an EYPP, all the other eligibility criteria must have been met by that date.

27. Relevant to this decision is the date Mr Parr was considered entitled to 80 impairment points. Pursuant to section 80, Yume Parr must still have been a full time student at the later of the two following dates:

    (i)the date the respondent determined Mr Parr was entitled to 80 or more impairment points; or

    (ii)the date of lodgement of the latest claim for a disease or injury that was relevant in Mr Parr having been allocated 80 impairment points.

28. Sections 68-70 MRCA set out the manner in which the commission is to determine the date of effect from which a veteran is entitled to compensation. Amongst other things, the Commission must be satisfied that the compensable condition is likely to continue indefinitely, and is stabilised.[4]

    [4] s 68(1)(b).

29. Pursuant to subsection 68(1)(c) of the Act, a veteran must also have lodged a claim for the compensable condition, before they can be entitled to any compensation for that condition.

30. The history of Mr Parr’s claims is set out above. Prior to Yume Parr graduating, Mr Parr lodged claims for conditions diagnosed as follows:

    (a)major depressive disorder;

    (b)osteoarthritis of the acromioclavicular joint of the left shoulder;

    (c)osteoarthritis of the acromioclavicular joint of the right shoulder;

    (d)basal cell carcinoma of the skin; and

    (e)carcinoma of the skin. 

31. Those are the only compensable conditions that can be considered when determining how many impairment points Mr Parr was entitled to on or before Yume Parr’s graduation.

32. On the basis of medical evidence from Mr Parr’s psychiatrist, Dr Chalk, Mr Parr was assessed as having 64 impairment points with effect from 31 July 2011.[5]  This was the date Dr Chalk opined the condition became permanent and stable.

    [5] T documents, p 169.

33. The Commission subsequently accepted liability for Mr Parr’s osteoarthritis of the acromioclavicular joint of the left shoulder, osteoarthritis of the acromioclavicular joint of the right shoulder, basal cell carcinoma of the skin and carcinoma of the skin.[6] On 9 August 2012 the Commission determined that the acceptance of these conditions resulted in Mr Parr being entitled to 2 additional impairment points only, and he was assessed as having 66 impairment points. As this change post dated Yume Parr’s graduation, I conclude that 64 impairment points was the appropriate assessment for Mr Parr for his then accepted conditions. This is the number of impairment points Mr Parr was entitled to at the time Yume Parr graduated.

    [6] T documents, p 187.

34. Although  Mr Parr made successful claims for a number of other conditions, subsequent to Yume Parr’s graduation, and he was assessed as having 80 impairment points with effect from 22 March 2012, at this point in time Yume Parr was no longer an “eligible young person”. The increase in impairment points to 80, was in part as a result of Mr Parr’s orthopaedic conditions. Orthopaedic surgeon Dr Hope opined Mr Parr’s orthopaedic conditions had been stable for one year (being 22 March 2012).[7]Dr Chalk indicated Mr Parr’s psychiatric condition, which also contributes significantly to the calculation of 80 points, had been stable since 27 February 2012.[8] Both of those dates are subsequent to Yume Parr’s graduation date.

    [7] T documents, p 113.

    [8] T documents, p 99.

35. Section 323 MRCA sets out the manner in which a claim must be made to the Commission. That Mr Parr may have discussed claiming certain conditions with his legal or veteran representative months or years prior to the actual claims being lodged in the appropriate format with the respondent, does not advance this claim. A claim is taken to have been made on the day it is lodged with a person or at a place approved of by the Commission for receiving such claims.[9] The date Mr Parr or his representative lodged his claim with the Commission is the date that his claim is deemed to have been lodged. Impairment from the conditions for which Mr Parr lodged claims subsequent to Yume Parr’s graduation cannot be taken into consideration.

    [9] s 323(2) MRCA.

36. Even if Mr Parr had made claims for those conditions prior to Yume Parr’s graduation, the claim for an EYPP would likely not have been successful, as the assessment of 80 impairment points is dependent on 20 impairment points for impairment in the right arm, and 10 impairment points for impairment in the left arm, conditions that, according to Dr Hope, have only been stable since 22 March 2012, subsequent to Yume Parr’s graduation.[10] Thus even if claims for those conditions had been lodged prior to Yume Parr’s graduation, the date of effect of Mr Parr’s 80 points  would not have been  until after she graduated. As the legislation requires the later of the two dates to be used. Because of the date of effect being after Yume Parr’s graduation,  she would not have satisfied the eligibility criteria for an EYPP, irrespective of the date the claim for these other conditions was lodged.

    [10] T documents, p 121.

37. In summary at the time Yume Parr graduated Mr Parr had lodged claims for a number of injuries and diseases, and the impairment rating was appropriately assessed on the available medical evidence as 64 impairment points. Mr Parr subsequently lodged claims for additional conditions, and as a result of impairment from some of those conditions his impairment level increased to 80 points. The medical evidence indicates the earliest date Mr Parr was entitled to 80 impairment points post dated the date of Yume Parr’s graduation. She therefore does not meet all of the legislative requirements for an EYPP.

    DECISION

38. The decision under review is affirmed.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

.................................SGD...................................

Dated 22 April 2015

Date of hearing	23 February 2015
Advocate for the Applicant	Ms Helena Smith
Counsel for the Respondent	Ms Elenne Ford
Solicitors for the Respondent	Moray & Agnew Lawyers